The Trump Administration’s War on DEI
[Cross-post from Latinx Talk]
For decades, colleges and universities have combated a history of exclusion of racial minorities and established an array of programs designed to that end. President Donald J. Trump rejects the notion embraced by universities, business, and government that the nation needs to address the history and legacy of discrimination in the United States through affirmative remedial efforts, including diversity, equity, and inclusion (DEI) programs. The Trump administration’s extreme color-blind, do-nothing approach runs counter to that of any modern U.S. president. Although adopted in the name of ending racial discrimination, this approach would set the nation back in its efforts to end discrimination in U.S. social life.
In a surprising move, the U.S. Department of Education’s Office for Civil Rights in a message shared with colleges and universities across the country declared that race-conscious student programming is unlawful racial discrimination and threatened to rescind federal funding from any institution that fails to comply. The threat has been taken seriously, with many colleges and universities heavily reliant on federal funding.
To push its anti-DEI policy preferences, the Trump administration relies heavily on an overbroad and flawed reading of a Supreme Court decision that prohibits the consideration of race in university admissions. In deciding to promote the abandonment of efforts to foster diversity, equity, and inclusion, the administration should consider how its efforts will set back the national quest for civil rights for all in the United States.
Some Background About DEI
Although DEI programs have been around for much longer, the police killing of George Floyd in 2020 sparked mass protests across the United States that made the need to address systemic racism all the more compelling. Challenges to discriminatory structures in criminal justice, employment, housing, higher education, health care, voting, and a myriad of areas came as well. Scholars for years have critically analyzed systemic racism without much of a public response. The contemporary public push for elimination of systemic racism thus is long overdue.
With the end of de jure segregation, higher education for years focused on enrolling a more diverse student body. That task was challenging and required much attention. Over time, universities moved beyond an exclusive focus on admissions and considered issues of diversity, equity, and inclusion, that is, the full integration of all students into the fabric of the institution. Because research has shown that DEI initiatives improve creativity, productivity and organizational performance, the business world also has embraced DEI programs.
DEI offices have emerged at universities in the United States. Universities appreciate that a campus’s racial climate will not improve absent a dedicated and sincere commitment and intentional action. DEI offices are focused on such actions. Although, as will be discussed, the Supreme Court now prohibits race-conscious affirmative action, universities have pursued lawful ways to continue to enroll diverse student bodies and implement successful DEI efforts that foster the retention and graduation of a diverse and inclusive student body.
Among those efforts, universities have sought to end implicit bias and stereotyping in colleges and workplaces. Implicit bias against women and people of color long has been recognized as a serious problem and leads to feelings by women and minorities that they are not welcome at institutions of higher education. Implicit bias programs are important components of many DEI programs at colleges, universities, and businesses. The Supreme Court has never directly addressed whether, and in what circumstances, DEI programs and implicit bias training might violate the civil rights laws. Any claims of discrimination would necessarily depend on the intent, facts, characteristics, and circumstances of the specific program.
The Dear Colleague Letter
In a Dear Colleague letter ironically released on Valentine’s Day in 2025, acting assistant secretary for civil rights in the Department of Education Craig Trainor outlined a broad interpretation of the Supreme Court’s decision in Students for Fair Admissions v. Harvard (2023) (Students for Fair Admissions v. President and Fellows of Harvard College | Oyez), which struck down Harvard and University of North Carolina policies considering race in affirmative action in undergraduate admissions.
The decision decided that race alone could not be considered in university admissions. However, the Trump administration in the Dear Colleague letter contends that the reasoning and holding of the Students for Fair Admissions case extends to spending, activities and programming at colleges and universities that are in any way related to race. This is the case even if the DEI programming is designed to reduce discrimination.
Writing for the majority of the Supreme Court, Chief Justice Roberts found that Harvard and the University of North Carolina’s race-based admissions systems failed to survive the strict scrutiny that a race-conscious program requires. The universities could not persuade the Court that a compelling state interest justified the consideration of race in admissions. Consequently, the Court held that the affirmative action programs violated the Equal Protection Clause of the Fourteenth Amendment.
However, Chief Justice Roberts characterized the universities’ interest in enrolling a racially diverse student body as “worthy” and “commendable.” Moreover, nothing in the Court’s decision prohibits universities from considering an applicant’s experience with how race – and racial discrimination — affected the individual applicant’s life, so long as that discussion is concretely tied to a quality of the applicant’s character or ability that the applicant can contribute to the university. Chief Justice Roberts specifically wrote that colleges and universities in the admissions process could consider how an applicant overcame racial discrimination:
[A]s all parties agree, nothing in this opinion should be construed as prohibiting universities from considering an applicant’s discussion of how race affected his or her life, be it through discrimination, inspiration, or otherwise. . . . A benefit to a student who overcame racial discrimination, for example, must be tied to that student’s courage and determination. Or a benefit to a student whose heritage or culture motivated him or her to assume a leadership role or attain a particular goal must be tied to that student’s unique ability to contribute to the university. In other words, the student must be treated based on his or her experiences as an individual—not on the basis of race. (emphasis in original).
The Dear Colleague letter implicitly rejects Chief Justice Roberts’ statements about how overcoming racial discrimination by an applicant may be worthy of consideration in the admissions process. At a minimum, the letter fails to make clear what the Court’s opinion declares is permitted with respect to race in the admissions process.
The Supreme Court’s affirmative action decision in Students for Fair Admissions is focused on the constitutionality of the admissions programs at Harvard and the University of North Carolina. There is no discussion in the Court’s opinion of DEI and other programs designed to eradicate the scourge of racial discrimination in U.S. society. With no apparent legal justification, the Trump administration has read the Supreme Court’s decision in Students for Fair Admissions as rejecting the consideration in admissions decisions to eliminate all diversity, equity, and inclusion programs of, for that matter, any program that considers race.
Put differently, DEI programs were not before the Supreme Court in the Harvard and University of North Carolina cases. The Court simply did not discuss, much less decide, the legality of DEI and the array of programs that the Dear Colleague letter declares are unlawful. Such fanciful reading of a Supreme Court decision is not what one would expect of a lawyer at the highest level of the U.S. government.
Although race should always be considered carefully and thoughtfully, that does not mean that race cannot be considered in any aspect of government and private actions, especially when it is designed to eliminate racial discrimination.
An Attack on DEI Programs
The Department of Education sees no room for DEI programming and characterizes it as racial discrimination. However, DEI programs represent a response to the systemic racism that lingers in American society and seek to remedy that racism. They seek to remove racial discrimination root and branch from U.S. social life. The Trump administration turns the world upside down by claiming that DEI programs constitute racial discrimination and threatens to strip universities that violate its dictates of all federal funding.
A group of law professors lay out their disagreements with the Dear Colleague letter. They contend, and I agree, that DEI efforts can and should continue. Ensuring that all groups feel accepted is necessary to ensure that the anti-discrimination norms of the law – which the Dear Colleague letter endorses — are met.
Before the Dear Colleague letter, I wrote after the Supreme Court’s decision in Students for Fair Admissions about the need to re-commit to DEI efforts and outreach efforts to all groups to ensure that all groups feel welcome at the university. For excerpts of the article, see “Diversity, Equity, and Inclusion as an Institutional Imperative.” I feared that the publicity that came with the end of race-conscious affirmative action would chill minority applicants from applying to colleges and universities. The Dear Colleague letter does not persuade me that I was incorrect in my assessment.
As a society, we must ensure that all communities feel welcome at our colleges and universities. For too long, people of color and other groups have felt excluded and unwelcome. Efforts must be made so that the doors are – and appear to be open — to all who are qualified. In a time when race-conscious affirmative action has ended, the efforts to ensure that qualified minorities continue to apply is even more important than it was previously. In addition, retention of all students requires training on diversity, equity, and inclusions. Implicit bias training is an important part of that programming.
I assume that the Trump administration is not reading the Harvard decision to water down or dilute any of the civil rights laws. We all should commit ourselves to ending racial discrimination on college and university campuses. Racial, gender, disability, and other unlawful discrimination remain problems that we need to educate others to be aware of and address in the best ways that we can.
One of the reasons that colleges and universities devoted resources to DEI was because integration alone had failed to make academic environments feel welcome to all. Educational professionals concluded that further steps were necessary to fully integrate all students into the educational environment. Many businesses reached similar conclusions and adopted various forms of DEI programming.
Of course, DEI programs are not the silver bullet. Programs that are mere window-dressing do nobody any good. But that is a very different attack than that taken in the Dear Colleague letter. Rather than claiming that DEI programs are ineffective, the Dear Colleague letter claims that the programs are forms of racial discrimination and unlawful. That is not a fair assessment of the intent, substance, or goals of DEI programming. DEI professionals across the country spend their professional lives trying to improve the academic climates for all.
Why is the Trump administration claiming that the Supreme Court has outlawed DEI programs? It is because the administration does not support DEI programs and wants to eliminate as many as possible. Of course, the administration is free to pursue that policy preference. However, that preference cannot justify re-writing the Supreme Court’s decision in Students for Fair Admissions. The Trump administration can use carrots and sticks to achieve its policy ends but cannot resort to legal falsehoods.
The President of the University of California, Michael Drake, responded in a straight-forward way to the Dear Colleague letter, DEI Program letter Feb. 20, 2025, stating that the University of California’s mission and values have not changed. We encourage UC staff to continue with their work in alignment with all applicable state and federal laws. We will continue to ensure that every Californian has the opportunity to join the UC community and feels welcome at our campuses. We are committed to ensuring that our campuses benefit from the talents and aspirations of all, as we create a vibrant workforce for future generations.
The University of California must do all that it can to best educate all of California’s diverse population. That task is a formidable one. I hope that other colleges and universities will follow this lead and not cave into the pressures applied by an administration that is seeking to bend the law to meet its own policy ends.
Conclusion
There unquestionably will be tension between the Trump administration and colleges and universities that push back on the administration’s anti-DEI efforts. Expect critical exchanges and possibly lawsuits. At the same time, surrender to the whims of the administration, and its fallacious reading of the Supreme Court decision, will set us back years in the quest for full inclusion of all groups in our colleges and universities.
Time will tell how universities will respond. The safest course is to go with the flow of the Trump administration and remove all references to diversity, equity, and inclusion from university websites and job titles. The alternative is perhaps more contentious and risky. But turning the racial clock back has its own risks. The nation has come far on the path to justice for all, but much work remains to be done.